United States District Court, W.D. Tennessee, Western Division
DAVIN D. CLEMONS, Plaintiff,
CITY OF MEMPHIS, TENNESSEE; and MEMPHIS POLICE DEPARTMENT, Defendants.
ORDER GRANTING DEFENDANTS CITY OF MEMPHIS AND MEMPHIS
POLICE DEPARTMENT'S MOTION ON THE PLEADINGS TO PARTIALLY
DISMISS PLAINTIFF'S TITLE VII CLAIM
McCALLA UNITED STATES DISTRICT COURT JUDGE
the Court is Defendants City of Memphis and Memphis Police
Department (collectively “Defendants”)'s
Motion on the Pleadings to Partially Dismiss Plaintiff's
Title VII Claim, filed October 19, 2016. (ECF No. 19.)
Plaintiff Davin Clemons filed a response in opposition on
November 16, 2016. (ECF No. 21.) Defendants filed a reply on
November 30, 2016. (ECF No. 22.) For the reasons stated
below, the Court GRANTS Defendant's Motion on the
Pleadings to Partially Dismiss Plaintiff's Title VII
Claim as to Plaintiff's claim of discrimination based on
sexual orientation WITH PREJUDICE, and as to Plaintiff's
claim of discrimination based on gender stereotyping WITHOUT
Davin Clemons, a TACT officer for Defendant Memphis Police
Department, brings suit against Defendants City of Memphis
and Memphis Police Department, for damages and injunctive
relief for discrimination, harassment, and retaliation
against him based on his sexual orientation, his position at
the police department as an LGBTQ Liaison, his disability,
and his religion. Plaintiff asserts violations of Title VII
of the Civil Rights Act, the Fourteenth Amendment and local
ordinance, and the Americans with Disabilities Act. (Compl.,
ECF No. 1.)
Title VII claim specifically seeks relief for “[t]he
harassing and discriminatory actions, conduct and/or
omissions . . . [that] were motivated by Officer Clemons'
sex (male) in that sexual orientation discrimination
encompasses treating an employee less favorably because of
his sex (in that Officer Clemons did not conform to sex
stereotypes and norms) . . . [and that occurred] because the
other employees and [Plaintiff's] objected to [his]
having romantic and sexual association with a male
partner.” (Id. ¶ 116.)
alleged actions Plaintiff deems discriminatory based on his
sex and sexual orientation include being told that superiors
did not approve of Plaintiff's “homosexual
lifestyle” (id. ¶¶ 47, 57); the
circulation of Plaintiff's engagement video in the
workplace in conjunction with Defendants' employees
“mocking and making negative comments about the
engagement of Officer Clemons to a same-sex male Officer and
that Officer Clemons is gay” (id. ¶ 91);
the disparate treatment by Defendants' employees of
Plaintiff compared to heterosexual officers (id.
¶¶ 45, 69, 88); and the inconsistent application of
department policies as applied to Plaintiff (id.
¶¶ 40-42, 48, 56, 58, 68-70, 78-80).
October 19, 2016, Defendants moved to dismiss Plaintiff's
Title VII claim, asserting that “Title VII prohibits
discrimination based on sexual orientation, and Plaintiff has
failed to state a claim for discrimination based on sex
stereotyping.” (ECF No. 19 at PageID 85.) Plaintiff
argues that Title VII “should be read and interpreted
to encompass discrimination due to sexual orientation,
” but even if the Court rejects this interpretation,
“Plaintiff has asserted sufficient facts to support a
claim of sex discrimination due to gender stereotyping and
gender non-conforming conduct under Title VII.” (ECF
No. 20 at PageIDs 101-02.)
Motions to Dismiss for Failure to State a Claim Under Title
Rule of Civil Procedure 12(c) governs motions for judgment on
the pleadings. Sensations, Inc. v. City of Grand
Rapids, 526 F.3d 291, 295 (6th Cir. 2008). A motion for
judgment on the pleadings is treated the same as a motion to
dismiss under Rule 12(b)(6). Id. Pursuant to Rule
12(b)(6), a court may dismiss a claim for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
A complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. . . . A
claim is facially plausible when the pleaded factual content
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. . . . [T]he
court need not accept as true allegations that are conclusory
or require unwarranted inferences based on the alleged facts.
Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir.
2015) (citations and internal quotation marks omitted).
is not the same as probability, but it requires ‘more
than a sheer possibility that a defendant has acted
unlawfully.'” Mik v. Fed. Home Loan Mortg.
Corp., 743 F.3d 149, 157 (6th Cir. 2014) (quoting
Iqbal, 556 U.S. at 678). A court must
“construe the complaint in a light most favorable to
the plaintiff.” HDC, LLC v. City of Ann Arbor,
675 F.3d 608, 611 (6th Cir. 2012).
VII of the Civil Rights Act of 1964 prohibits an employer
from discriminating against an individual “with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). “In order to establish a prima facie
case of sex discrimination under Title VII, a plaintiff must
show (1) that he is a member of a protected class, (2) that
he was subject to an adverse employment decision, (3) that he
was qualified for the position, and (4) that he was treated
differently than a similarly situated individual outside the
protected class.” Vickers v. Fairfield Med.
Ctr., 453 F.3d 757, 762 (6th Cir. 2006). Notably, for
Title VII claims, the plaintiff is not required to establish
a prima facie case to withstand a motion to dismiss for
failure to state a claim. Swierkiewicz v. ...